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DEE-5: Air Pollution Control Enforcement Policy - Appendix VIII

New Vehicle Emission Standards - 6 NYCRR Part 218

I. Purpose

The purpose of this enforcement guidance memorandum is to establish the Department's enforcement strategy for violations of new vehicle emission standards under 6 NYCRR Part 218. In particular, this document is concerned with the sale and leasing of noncomplying vehicles and improper record keeping in violation of Part 218. This document contains a list of penalties for various listed violations. The Department's objectives in developing this penalty structure is to ensure that violators do not benefit economically from noncompliance with Part 218 and are deterred from future violations.

II. Background

Part 218 regulates the sale, offer for sale, leasing, importing, delivery, purchase and registration of new vehicles in terms of Emission standards for a variety of pollutants including carbon Monoxide, oxides of nitrogen and volatile organic compounds. This program was adopted based on California's new vehicle emission standards as permitted by Section 177 of the Federal Clean Air Act. It is a critical component of New York's efforts to control air pollution in the New York metropolitan areas. Motor vehicle emissions account for almost 90% of the carbon Monoxide problem and over 50% of the ozone precursor problem (NOx and VOCs). Control of emissions from motor vehicles is necessary to bring New York into attainment of the national ambient air quality standards. It is a strategy contained in the State Implementation plan (SIP) for the attainment and maintenance of the ozone standard. These standards also benefit the health of New Yorkers by reducing emissions of toxics.

The Environmental Conservation Law (ECL) Section 71-2103 and 71-2105 provide for penalties of up to $10,000 for each day during which such violations occurs. It provides for a penalty of up to $15,000 for second and subsequent violations and an additional penalty of up to $15,000 for each day during which such violation occurs. The criminal penalty provisions provides for a Penalty of up to $10,000 and up to one year of imprisonment for each violation. It also provides for a penalty of up to $15,000 and up to one year of imprisonment for each violation when such conviction is for a second or subsequent offense.

III. NOV / Consent Order

The Notice of Violation and Consent Order (NOV / Consent Order) is a one page document which describes the violation and provides for an admission and waiver of right to a hearing. The Consent Order also contains provisions for a penalty per violation. Any such penalties are to be paid within fifteen (15) days after execution of the Order. Specific penalties are outlined below. Each noncomplying vehicle sold is considered A separate violation. Failure to maintain records as required by Part 218 on each subject vehicle is considered a separate violation.

IV. Strategies

  1. Dealers

    The Department of Motor Vehicles (DMV) has begun to deny the registration of Noncomplying vehicles when a motor vehicle dealer attempts to register such vehicles. The DMV will be notifying this Department of noncomplying vehicles that have been registered by persons other than the dealers. In such cases, DMV is also notifying the dealer which sold or leased the noncomplying vehicle that information has been referred to this Department for potential enforcement action. Upon receipt of such notice the Bureau of Mobile Sources (BMS) will issue a Notice of Compliance Determination (NOCD) by certified mail To the New York State dealer who sold the subject vehicle. Such NOCD will be subject to verification by the Department. The NOCD should be mailed to the dealer within five business days of the Department's receipt of DMV's notification. The Department is aware that in some cases, this may be simply a paperwork mistake, for example, the registrant did not provide proof of Certification. If the dealer cannot verify that the subject vehicle Complies with Part 218 or does not return the form within three weeks of receipt, BMS will send a Notice of Violation, accompanied by a short form Consent Order, by certified mail to the New York State dealer who sold the noncomplying vehicle for registration in new York. The NOV / Consent Order specifies that it is to be returned to the Department within thirty days (30) of the date it was received by the dealer.

    Noncomplying Vehicles
    Violation Penalty
    First Violation - Selling, leasing or registering a noncomplying motor vehicle. $500(1)
    Second and Subsequent Violations - Selling, leasing or Registering a noncomplying motor vehicle. $1,000 per violation.

    1. For a first violation, in the discretion of the Department, the penalty for selling or leasing a noncomplying vehicle may be suspended. Such suspension may continue for one Calendar year provided that during that calendar year no other violations occur. At the end of the one calendar year, such penalties may be dismissed. If during that one year the subject dealer violates Part 218 again, all penalties from the first violation will immediately become due and payable.

  2. Inspections

    In order to determine compliance with Part 218, authorized representatives from the Department will be visiting dealers for the purposes of inspecting vehicles on display and reviewing documents pertaining to sales of model year 1996 and newer motor vehicles, including the dealer's book of registry. If the authorized representatives find a violation of Part 218, the dealer will be issued an NOCD outlining the violations. Within five Business days of issuing the NOCD, BMS will send a copy of the NOCD along with a Notice of Violation / Consent Order, by certified mail To the subject New York State dealer. The NOV / Consent Order specifies that it is to be returned to the Department within three weeks of receipt by the dealer. In addition to those penalties for sale, leasing or registering noncomplying vehicles listed in a above, the following penalties shall also apply.

    Noncomplying Vehicles
    Violation Penalty
    Failure to permit an authorized representative of the Department the right of entry to the premises as permitted in Part 218. $500 per violation.
    Failure to permit an authorized representative of the Department to examine records as permitted in Part 218. $500 per violation.
    Failure to maintain records as required by Part 218. $250 per violation.

Dated: April 23, 1996

Albany, New York

Michael D. Zagata
Commissioner of Environmental Conservation

-------------------------------------------------------

Case No.

New York State Department of Environmental Conservation - Notice of Violation

Owner / Operator:

Address:

Facility Name and Location:

DMV Dealer Facility Number:

Date:

On the date and place noted above, you violated the New York State Environmental Conservation Law (ECL), the State Regulations promulgated pursuant to the ECL, in that you caused or permitted the following activities to occur:

[ ] Selling / leasing or registering a non-complying vehicle in violation of ECL Article 19 and 6 NYCRR Part 218.

[ ] Failure to maintain or provide records in violation of ECL Article 19 and 6 NYCRR Part 218.

YOU ARE HEREBY DIRECTED TO CEASE AND DESIST from violating the ECL. Failure to cease and desist from such violations within the terms of this Notice of Violation and the accompanying Consent Order will subject you to new liability for such additional violation, and may cause DEC to assess a larger monetary penalty or fine, per violation, than would otherwise be assessed.

If you do not contest the above violations, date and sign the Consent Order in the space titled "Respondent" and send the complete form to the attention of: Ms. Elissa Armater, New York State Department of Environmental Conservation, Division of Environmental Enforcement, 625 Broadway, Albany, New York 12233-5500.

IF YOU DO NOT RESPOND TO THIS NOTICE BY RETURNING THIS DOCUMENT AFTER SIGNING THE CONSENT ORDER SET FORTH BELOW WITHIN THIRTY (30) DAYS DEC WILL BRING CIVIL ENFORCEMENT PROCEEDINGS AGAINST YOU. Please be advised that significant penalties will be sought if this matter is brought to a hearing.

Issuing Inspector: ________________________________________________

Consent Order

WHEREAS, the RESPONDENT committed the violation(s) of the ECL or regulations described in the accompanying NOTICE, and WHEREAS, the Respondent consents to the issuance of this Order, waives right to a hearing as provided by law, and agrees to be bound by this order. NOW THAT, as a result of the described violation(s), Respondent is hereby assessed a civil penalty in the amount of $_______________ (SEE EGM FOR PENALTY STRUCTURE FOR VIOLATIONS OTHER THAN FIRST VIOLATION OF SELLING OR LEASING A NONCOMPLYING VEHICLE).

Respondent:______________________________________________________

Date: ______________________________

Director, Division of Environmental Enforcement:

__________________________________________________________________

Case No.

Effective Date:

PLEASE RETURN THIS ENTIRE NOTICE OF VIOLATION AND CONSENT ORDER, SIGNED AND DATED - DO NOT TEAR OFF BOTTOM PORTION.

NOTE: An executed copy of this Order will be returned to you by certified mail.

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